Mirandizing Terror Suspects, Part II

No nation with even a rudimentary sense of survival would delay the questioning of captured terrorists to take time to advise them that they need not say a word and that a lawyer will be provided to assist them in clamming up. I made that point earlier this month.

I'm thrilled that the Department of Justice is not as 100% clueless as it had seemed when Eric Holder couldn't give a coherent answer to Congress on the Miranda-and-terrorists question. Now it's merely 90% clueless.

The key to understanding its cluelessness is in a paragraph farther down in the WSJ piece Kent cites:

The Justice Department believes it has the authority to tinker with Miranda procedures [by expanding the Quarles exception]. Making the change administratively rather than through legislation in Congress, however, presents legal risks.

"I don't think the administration can accomplish what I think needs to be done by policy guidance alone," said California Rep. Adam Schiff, the top Democrat on the House Intelligence Committee. "It may not withstand the scrutiny of the courts in the absence of legislation."

Rep. Schiff hits the nail on the head. If there were anyone at DOJ capable of reading a Supreme Court case, this would be pellucidly clear.

The governing case is Dickerson v. United States, 530 U.S. 428 (2000). Dickerson struck down a 1968 statute, 18 USC 3501, which modified Miranda's rule automatically suppressing any in-custody statement not preceded by warnings. In a decision attesting to the dangers, and the extent, of judicial arrogance, the Court held that since its own thoroughly improvised Miranda rule was "rooted" in the Constitution, Congress had no authority to modify it. Only the Court could modify it -- as it had done, for example, in Quarles.

Now Mr. Holder seems to believe that Dickerson simply doesn't exist, and that not only can the warning requirement be modified by a branch other than the Supreme Court, it can be modified by -- guess who? -- Eric Holder. Indeed, the Department's stance arguably goes beyond merely modifying Miranda and/or expanding Quarles; it would seem to create a whole new "terrorist interrogation" category.

On the merits this is an excellent idea. That said, the Attorney General's decision is stunning, not merely for its seeming disregard of the law, but because Mr. Holder himself was the Deputy AG at the time DOJ decided to concede in Dickerson that Section 3501 was indefensible, threw in the towel on its victory in the Fourth Circuit, and lined up in the Supreme Court with the defendant, Mr. Dickerson, arguing explicitly that the authority to change Miranda rested solely with the judicial branch.

Putting to one side the enormous national security implications of DOJ's shifting positions, one must simply be stunned by the aimlessness of it all. Lawlessness gets built upon lawlessness. First, the Clinton/Reno/Holder DOJ decides to turn its back on a statute that at least partly reined in Miranda's excesses, and now, having won that perverse "victory," decides -- given its embarrassing performance before Congress trying to explain this mess -- that it will turn its back on the very decision its prior back-turning brought about.

Incoherent, lawless and irresponsible are the best words I can think of to describe this state of affairs. Miranda needs some big changes, but self-help, even (indeed especially) by the Attorney General, does not sit easily with the rule of law.